‘Serious Irregularity', Inappropriate Behaviour And Confidentiality

The losing Respondent in an ICC Arbitration with the seat in London challenged the Award on the grounds of 'serious irregularity' and argued that as one of the arbitrators had acted inappropriately, it should be set aside and not remitted back to the arbitrators. Lastly, the judge in Symbion Power LLC v Venco Imtiaz Construction Co [2017] EWHC 348 (TCC) considered whether the report of the challenge in court should be anonymised.

Serious Irregularity

The Respondent's application was based on section 68(2)(d) of the Arbitration Act 1996, which defines serious irregularity as a 'failure by the Tribunal to deal with all of the 'issues' that were put to it' if the court considers that it 'has caused or will cause substantial injustice'. In its judgment, the court revisited the decision in Secretary of the State for the Home Department v Raytheon Systems Ltd [2014] EWHC 4375 (TCC) which drew a distinction between 'issues' and arguments, points, lines of reasoning or steps in an argument. Conversely, an issue is a matter that is essential to a decision reached and it must have been put to the Tribunal. The Respondent listed four aspects of its defence which it argued had not been dealt with but the court concluded after careful analysis of each that none of the complaints were justified.

Bearing in mind that the court had decided that there was no serious irregularity, the court did not have to decide whether to remit the Award back to the arbitrators for reconsideration or, as the Respondent argued, set it aside. However, because the Respondent's argument was based upon evidence of inappropriate behaviour by one of the arbitrators, the judge considered that this was a matter of such concern that it should be addressed in the judgment.

Inappropriate Behaviour

The court had heard that some two years before the Final Award, the arbitrator appointed by the Respondent sent the Respondent's counsel an email marked "HIGHLY CONFIDENTIAL: NOT TO BE USED IN THE ARBITRATION" and not copied to the other party or arbitrators. The email stated that it was sent on the explicit condition that it could not be referred to in the arbitration and went on to express highly negative views about the Chairman, stating that the author would encourage the Chairman to resign. The Respondent's Counsel replied saying that it did not feel the need to discuss the matter but would keep the confidence.

The Chairman did not resign and the arbitration proceeded to a Final Award...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT